DJY16 v Minister for Immigration and Border Protection
[2018] FCA 245
•7 March 2018
FEDERAL COURT OF AUSTRALIA
DJY16 v Minister for Immigration and Border Protection [2018] FCA 245
File number(s): WAD 587 of 2016 Judge(s): SIOPIS J Date of judgment: 7 March 2018 Catchwords: MIGRATION – the applicant came to Australia as a child – the applicant was convicted of criminal offences – the applicant’s refugee visa was cancelled by a delegate of the Minister for Immigration and Border Protection under s 501(3A) of the Migration Act 1958 (Cth) – a delegate of the Minister declined to revoke the cancellation of the applicant’s refugee visa pursuant to s 501CA(4) of the Migration Act – the Administrative Appeals Tribunal upheld the delegate’s decision – the applicant applied to this Court for judicial review of the Tribunal’s non‑revocation decision – whether the Tribunal fell into jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 476A, 499, 501, 501(3A), 501(7), 501CA, 501CA(4), 501CA(4)(b)(ii) Cases cited: Falzon v Minister for Immigration and Border Protection [2018] HCA 2 Date of hearing: 26 April 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 73 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: Mr PR Macliver Solicitor for the First Respondent: Australian Government Solicitor ORDERS
WAD 587 of 2016 BETWEEN: DJY16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
7 MARCH 2018
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 10 November 2016 is dismissed.
2.The applicant is to pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to revoke under s 501CA(4) of the Migration Act 1958 (Cth) a decision made under s 501(3A) of the Act to cancel the applicant’s Class XB Subclass 200 Refugee and Humanitarian (Permanent) visa (refugee visa).
The applicant raised as a ground of review a contention that s 501(3A) was unconstitutional. Judgment in this case was reserved pending the determination of this issue by the High Court of Australia. On 7 February 2018, the High Court in the case of Falzon v Minister for Immigration and Border Protection [2018] HCA 2 rejected that contention. It is necessary, therefore, to deal only with the other grounds of review.
The applicant was born in Sudan in 1993 and lost both of his parents when he was a young child. At the age of 12, the applicant and four of his siblings were granted refugee visas and, in April 2006, they travelled from a refugee camp in Kenya, where they were living at the time, to Australia. The applicant has not left Australia since then.
The applicant is now 24 years old and has been detained in prison and subsequently immigration detention continuously since at least May 2014.
From the age of 14, the applicant appeared before the Children’s Court of Western Australia frequently on criminal charges and also spent time in juvenile detention. The applicant’s criminal conduct as a minor included assault and obstruction of public officers, breaches of bail undertakings, assaults, damage to property, deprivation of liberty, stealing, and aggravated burglary and robbery offences.
As an adult, the applicant continued to engage in criminal conduct including violent criminal conduct.
The applicant was convicted of assault occasioning bodily harm and sentenced on 19 October 2012 to eight months’ imprisonment. He was also sentenced on the same occasion for damage to property and trespass offences and received shorter, concurrent terms of imprisonment in respect of those convictions.
On 10 May 2013, the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department), wrote to the applicant notifying him that his refugee visa may be liable for cancellation on character grounds, on the basis of his criminal conduct.
However, on 11 June 2013, the department wrote again to the applicant to notify him that a delegate of the Minister had made a decision not to cancel the applicant’s refugee visa. The letter went on to state that the delegate had decided to give the applicant a “formal warning” which acknowledged that his “background as a refugee gives some understanding into the challenges he has faced since arriving in Australia” but which cautioned that “any further criminal convictions could lead to cancellation of his visa in the future”.
The formal warning had little effect upon the applicant’s conduct. The applicant’s next offence occurred on 6 July 2013, with further criminal conduct occurring on 14 July 2013, 18 July 2013, 19 July 2013, 20 February 2014, 21 February 2014, 24 February 2014, 18 March 2014, 7 April 2014, 8 April 2014 and 10 April 2014.
On 23 October 2014, the applicant was convicted in the District Court of Western Australia of aggravated burglary and commit offence in dwelling for which he was sentenced to 16 months’ imprisonment and attempting to pervert justice for which he received a cumulative sentence of six months’ imprisonment. The applicant was made eligible for parole after serving 11 months of the 22 month sentence.
On 27 October 2014, the applicant was convicted of assault occasioning bodily harm in the Perth Magistrates Court and sentenced to 12 months’ imprisonment. The applicant was also convicted and sentenced on that date for related offences including aggravated burglary, stealing a motor vehicle, stealing and breach of bail for which he received sentences of imprisonment, to be served concurrently, and fines. The sentence was backdated to May 2014 to take into account time spent in custody awaiting sentencing.
On 9 September 2015, the applicant’s refugee visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act.
Section 501(3A) provides as follows:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Upon the delegate having been satisfied that the applicant did not pass the “character test” by reason of his “substantial criminal record” and also that the applicant was then serving a full‑time sentence of imprisonment for his criminal conduct, s 501(3A) had the effect of making the cancellation of the applicant’s visa mandatory.
The applicant was notified of the visa cancellation decision by letter dated 9 September 2015 and was invited to make representations to the Minister about revocation of the mandatory visa cancellation decision pursuant to s 501CA of the Migration Act.
On 25 September 2015, the applicant lodged a request for revocation of the visa cancellation decision and enclosed a submission in support of the request.
On 3 March 2016, the applicant, through his legal representative, made further submissions in support of revocation of the delegate’s decision.
On 5 April 2016, a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of the applicant’s refugee visa. The delegate was not satisfied that the applicant passed the character test under s 501 of the Migration Act, nor that there was another reason why the original decision should be revoked.
THE TRIBUNAL
On 9 April 2016, the applicant applied to the Tribunal for review of the delegate’s non-revocation decision. The applicant was represented in respect of the Tribunal proceedings.
The issue for determination by the Tribunal was whether the mandatory cancellation of the applicant’s refugee visa under s 501(3A) should be revoked pursuant to the discretion in s 501CA(4) of the Migration Act. It was not in dispute that the applicant did not pass the character test due to his having a “substantial criminal record” as that term is defined in s 501(7) of the Migration Act. Therefore, the question before the Tribunal was whether there was “another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)).
The Tribunal was required to have regard to a written Ministerial direction made under s 499 of the Migration Act referred to as Direction no 65 “Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA”.
Part C of Direction no 65 identified the “primary considerations” relevant to determining whether to revoke the mandatory cancellation of a non-citizen’s visa under s 501CA(4) of the Migration Act. The primary considerations were:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian community.
Direction no 65 also stated that in deciding whether to revoke a mandatory cancellation of a visa, other considerations must also be taken into account where relevant, which included, but were not limited to, the following:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims;
(e)extent of impediments if removed.
Primary considerations
In relation to the first “primary consideration” the Tribunal had to consider two aspects, first the “nature and seriousness” of the applicant’s conduct to date, and, secondly, the risk to the Australian community should the applicant re-offend.
The Tribunal found, in accordance with Direction no 65, which viewed violent crimes as “serious”, that the applicant’s criminal conduct was serious as he had convictions for a number of violent offences including assault occasioning bodily harm. The Tribunal also found that the applicant had convictions for non-violent offences which were, nonetheless, “serious”, such as attempting to pervert justice.
Before the Tribunal, the applicant’s representative submitted that the applicant had had a traumatic childhood; having grown up in South Sudan in a war zone without his parents and having lived in refugee camps from the age of 10 years old. The applicant’s representative submitted that most of the applicant’s offending occurred when he was below the age of 20, that it had been opportunistic and random and fuelled by alcohol and drugs, and that the applicant had since “matured, reflected on his offending, returned to his Catholic faith and is rehabilitated”.
The Tribunal concluded that the nature and seriousness of the applicant’s conduct was a significant consideration weighing heavily in favour of affirming the cancellation decision. The Tribunal gave the following reasons.
First, the Tribunal found that the applicant’s criminal conduct appeared to have escalated in seriousness over time, with most prison sentences having been imposed in 2014.
Secondly, the Tribunal found that the cumulative effect of the applicant’s criminal conduct was additionally “serious” with the applicant having committed over 40 offences since arriving in Australia including over half of those as an adult prior to his incarceration and detention.
Thirdly, the Tribunal went on to find that the “formal warning” from the department regarding the possibility of cancellation of the applicant’s visa did not appear to have had a deterrent effect on the applicant as he had offended again less than a month after the warning and periodically thereafter. The Tribunal also noted that the submissions put forward in mitigation had been taken into account by the judges at the time of sentencing the applicant.
Turning to the risk to the Australian community should the applicant re-offend, the applicant’s representative submitted that the applicant presented a low risk of re-offending, assuming he “stays clear of drugs, alcohol and his former associates”. The applicant relied on a report from Acacia Prison to the department on 19 March 2013 which showed that the applicant had attended some Alcoholics Anonymous (AA) meetings and that he was generally well-behaved in prison. The applicant also said that he had attended some anger management courses and a vocational course; and that he now exercised and prayed regularly and would attempt to get a job and attend church if released into the community. The applicant also stated that he had the support of his siblings in Australia and could stay with them if released into the community.
The Tribunal found that there was no evidence on which it could conclude that the applicant presented a low risk of re-offending. The Tribunal did not accept that some AA meetings which the applicant attended in prison were sufficient to “break an extensive drinking habit which has spanned some eight years”. The Tribunal stated that after having been released, the applicant committed “further, and arguably more serious offences” involving excessive alcohol consumption, which suggested that his attempts at rehabilitation whilst in Acacia Prison had “clearly been ineffective” and further, that this criminal conduct occurred despite the formal warning from the department.
The Tribunal went on to consider the evidence of the applicant’s older sister and older brother and the evidence of Mr James Row, an elder in the Nuer South Sudanese community in Western Australia. The Tribunal observed that the applicant’s sister had described how the applicant’s demeanour had changed and he had matured since being in detention. The Tribunal also observed that similar sentiments had been expressed by his brother. Both of the applicant’s siblings acknowledged in evidence that their knowledge of the applicant’s offending was based on what the applicant had told them about it. Mr Row gave evidence that if the applicant was permitted to stay in Australia he would be welcomed into the South Sudanese community’s “youth forum” and be provided with support and counselling. However, Mr Row also stated that he had not seen the applicant since 2010 and his recent knowledge of the applicant was based on what he had been told by the applicant’s siblings.
The Tribunal placed little weight on this evidence. The Tribunal inferred that the applicant had not sought counselling in respect of his criminal conduct until he was detained, and had not been “serious about rehabilitating himself until the actual cancellation of his visa”.
The Tribunal concluded that the applicant “cannot be seen to be of low risk of reoffending” and that he posed “a significant and unacceptable risk” to the Australian community, in light of:
the extensive history of offending by [the applicant] over a lengthy period, and in the absence of any meaningful rehabilitation by [the applicant], including the absence of any evidence to show that [the applicant] has addressed any underlying psychological and emotional issues…
In relation to the second “primary consideration”, the interests of minor children, the Tribunal considered the interests of the two year old son of Ms Tameka Oliver, the applicant’s partner. The applicant is not the father of Ms Oliver’s son. However, the applicant claimed that he had a relationship with the son, and the son would be detrimentally affected if the applicant was removed from Australia. The Tribunal found that the applicant had only met the son about four times but accepted that the applicant spoke to the son by telephone. The Tribunal concluded that any adverse impact on the son was not significant and was “clearly outweighed” by other factors.
The third “primary consideration” considered by the Tribunal was Australian community expectations regarding whether a non-citizen who has been convicted of offences in Australia should continue to hold a visa. The Tribunal acknowledged that the applicant was “young and has faced a lot of difficulties in his life”. However, the Tribunal concluded that the seriousness of the applicant’s conduct, including the number of offences and their cumulative effect was such that “the Australian community would expect that [the applicant’s] visa be cancelled”.
Other considerations
The other relevant considerations in this case were Australia’s international non-refoulement obligations, strength, nature and duration of ties to Australia and extent of impediments if removed.
The Tribunal determined that even if the mandatory cancellation was not revoked, the applicant would retain the option of applying for a protection visa and, in those circumstances, the Tribunal was not required to consider whether Australia owed non‑refoulement obligations to the applicant.
However, the Tribunal also acknowledged that if the applicant applied for and was not granted a protection visa, he would “face the prospect of indefinite detention as he is a stateless person with nowhere to be removed to”. Despite that prospect, the Tribunal concluded that the unacceptable risk to the Australian community of the applicant re‑offending outweighed countervailing factors, including Australia’s non-refoulement obligations and the prospect of prolonged detention.
The Tribunal accepted that the applicant would face significant impediments if removed from Australia but reiterated that the applicant may apply for a protection visa.
The Tribunal accepted that the applicant had lived in Australia for over 10 years and that he had family, including his two brothers and two sisters, as well as his partner, Ms Oliver, and friends – all living in Australia. However, the Tribunal found that the length of time the applicant had been in Australia should be afforded less weight in circumstances where he began offending less than two years after his arrival. The Tribunal accepted that the applicant has familial and social ties with people in Australia but that this consideration did not outweigh the primary considerations in this case.
JUDICIAL REVIEW
On 10 November 2016, the applicant sought review of the Tribunal decision in the Federal Circuit Court of Australia.
On 9 December 2016, the matter was transferred from the Federal Circuit Court to this Court as s 476A of the Migration Act confers original jurisdiction upon this Court where a privative clause decision has been made by the Tribunal on review under s 500 of the MigrationAct.
The applicant relies on the following three grounds of judicial review:
1.The AAT gave insufficient weight to many of my claims that I presented during the hearing and in my submissions.
2.The AAT gave insufficient weight to the evidence of witnesses called by my legal representative during the hearing - particularly evidence that was given about my rehabilitation and reform.
3.That in the circumstances the AAT has sentenced me to an indefinite term of indefinite detention long after I have paid for my crime.
In addition, the applicant provided a document dated 5 March 2017, which contained the following additional grounds:
[T]he decision makers did not take into account all relevant materials; they identified the wrong issue, asking irrelevant questions, ignoring relevant material and relying on irrelevant material.
The additional grounds were not particularised.
At the hearing of the application, the applicant also contended that the Tribunal did not take into account “emotional hardship for my family, sisters and brothers” if he was not able to return to them as he has been able to in the past after his terms of imprisonment.
Ground 1
By this ground of review, the applicant contended that the Tribunal gave insufficient weight to “many of my claims” that he presented in the hearing and his submissions.
The applicant did not identify the claims to which he referred in that ground of review by way of particulars. However, at the hearing, as mentioned, the applicant complained that the Tribunal did not take into account the “emotional hardship” for his family if his visa was cancelled and he was unable to return to them.
In the submissions made by the applicant’s representative to the Tribunal, there is a sentence which states that if the applicant was removed from Australia “[h]ardship would be caused to [the applicant’s] immediate and extended family in Australia - especially his Australian citizen partner, Tameka Oliver and her son”.
The Tribunal referred to the fact that applicant’s parents had been killed in Sudan and that the applicant, his brothers and sisters had travelled together to Australia and that from the age of 10, the applicant had been raised by his older sister. The Tribunal also recognised that the applicant had been living in Australia for more than 10 years and that his two brothers and two sisters were also living in Australia.
There were letters of support from members of the applicant’s family before the Tribunal in which the members of his family and his partner, Ms Oliver, had said that they would be devastated if the applicant was removed from Australia.
The Tribunal referred to the letters of support from members of the applicant’s family, including Ms Oliver, in [67] of its reasons for decision. However, whilst recognising the family and social ties between the applicant and members of his family and Ms Oliver, who all resided in Australia, the Tribunal placed little weight on that circumstance, saying that “this consideration does not outweigh the primary considerations in [the applicant’s] case”.
It was open to the Tribunal to adopt the course that it did, namely, by giving little weight to the concerns expressed by members of the family and Ms Oliver that would flow from the cancellation of his visa; and give more weight to the primary considerations. The approach taken by the Tribunal did not disclose jurisdictional error. The weight which a Tribunal gives to evidence is a matter within the jurisdiction of the Tribunal.
Ground 1 of the judicial review application is dismissed.
Ground 2
The second ground of review is that the Tribunal gave insufficient weight to the evidence of the witnesses the applicant called, particularly, evidence that was given about the applicant’s rehabilitation and reform.
The Tribunal did have regard to the applicant’s evidence, the evidence of his older sister and his older brother as well as the evidence of Mr James Row, an elder in the Nuer South Sudanese community in Western Australia, as to his rehabilitation and his risk of re‑offending. In addition, on that question, the Tribunal also considered a report provided by Acacia Prison to the department on 19 March 2013.
The Tribunal dealt at some length with this evidence and the issue of the risk that the applicant would re-offend at [34]-[45] of its reasons for decision.
The Tribunal observed that the applicant’s sister’s and brother’s knowledge of the applicant’s offending was based only on what the applicant had told them. Further, the Tribunal observed that Mr Row had not seen nor spoken to the applicant since 2010 and his opinions were based on conversations Mr Row had had with the applicant’s older sister and brother.
It is the case, as the applicant contended, that the Tribunal placed little weight on the applicant’s evidence and that of the witnesses whom he called, as to the risk of the applicant re-offending. At [45] of its decision, the Tribunal found, for the reasons set out at [36] above, that the applicant posed a “significant and unacceptable risk to the Australian community”.
It was open to the Tribunal to adopt that approach. No jurisdictional error is disclosed.
Ground 2 of the judicial review application is dismissed.
Ground 3
The third ground of review was that the Tribunal had sentenced the applicant to an indefinite term of detention which would endure long after he had paid for his crimes.
The reference to indefinite term of detention, was a reference to the applicant’s contention that the consequence of the non-revocation of the cancellation of his refugee visa was that he would be likely to face indefinite immigration detention. This was because he, the applicant, was stateless and could not prove nor gain foreign citizenship or travel documents. Further, it was said that South Sudan was a more dangerous place than when the applicant left it as a refugee and that that circumstance was likely to trigger non-refoulement obligations preventing his removal from Australia.
In considering this aspect of the applicant’s application, the Tribunal referred to para 14.1 of Direction no 65, which provides:
14.1International non-refoulement obligations
…
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
The Tribunal found that if the cancellation of the applicant’s visa was not revoked, the applicant would retain the option of applying for a protection visa. The Tribunal went on to find that it was not required to determine for the purposes of the application whether Australia did owe non-refoulement obligations to the applicant.
It was not a jurisdictional error for the Tribunal to have adopted this approach.
Ground 3 of the judicial review application is dismissed.
Additional grounds
As to the additional grounds that are referred to at [47] above, in the absence of the applicant having particularised the grounds in question, it is not possible to meaningfully address these highly generalised grounds of review.
However, I have had regard to the decision of the Tribunal and I have not detected a basis upon which any credible argument could be made that the Tribunal has fallen into jurisdictional error for one or more of the reasons identified in the generalised grounds referred to by the applicant.
It follows that the application for judicial review is dismissed with costs.
I certify that the preceding seventy‑three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate
Dated: 7 March 2018
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